Delhi High Court
Reliance General Insurance Co. ... vs Jyoti & Ors. on 12 December, 2012
Author: G.P. Mittal
$ 3, 4, 12, 13 & 42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th December, 2012
+ MAC. APP. 672/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
JYOTI & ORS. ..... Respondents
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates for Respondent No.1.
+ MAC. APP. 673/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
NISHAR AHMED & ORS. ..... Respondents
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates for Respondent No.1
& 2.
+ MAC. APP. 674/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
SITA & ORS. ..... Respondents
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates for Respondent No.1.
MAC. APP. Nos.672/2011, 673/2011, 674/2011, 676/2011 &221/2012 Page 1 of 7
+ MAC. APP. 676/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
SURESH & ORS. ..... Respondents
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates for Respondent No.1
& 2.
+ MAC. APP. 221/2012
SURESH & ORS. ..... Appellants
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates
Versus
RELIANCE GENERAL INSURANCE CO. LTD. ..... Respondents
Through: Mr. Sameer Nandwani, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These five Appeals arise out of a common judgment dated 18.03.2011
passed by the Motor Accident Claims Tribunal(the Claims Tribunal)
whereby a compensation as tabulated hereunder was awarded by the
Claims Tribunal:-
S. Petition No. MAC.APP.No. Name of the Amount of
No. Injured/Claimant Compensation
1. 142/2010 672/2011 Jyoti `20,000/-
2. 111/2010 673/2011 Nishar Ahmed `7,69,416/-
and Anwari
3. 121/2010 674/2011 Sita `1,40,000/-
4. 137/2010 676/2011 Suresh and Ram `1,37,228/-
Naresh
5. - 221/2012 Suresh and Ram -
(Cross Naresh
Objection of
676/2011)
2. The amount of compensation is not challenged by the Appellant
Insurance Company. However, in MAC.APP.676/2011 the Claimants
have filed Cross-Objections and seek enhancement of compensation.
3. I shall deal with the Cross-Appeal a little later. First of all, let me advert
to the four Appeals filed by the Reliance General Insurance Co. Ltd.
4. The only ground of challenge raised by the Appellant Insurance Company
is that Respondent No.3 Amit @ Nata, driver of RTV No.DL-1VA-1494
did not possess a valid and effective driving licence to drive the insured
vehicle. The Appellant was, therefore, entitled to avoid the policy. Thus,
the Appellant Insurance Company was at least entitled to recovery rights
against the owner and the driver of the offending vehicle.
5. The learned counsel for the Appellant Insurance Company urges that in
these cases a DAR(Detailed Accident Report) was filed by the IO of the
case which stated that the driver had absconded and, therefore, could not
produce the driving licence. It is important to note that the driver of the
offending vehicle had absconded after the accident. As per the learned
counsel for the Appellant and also the police report, he was declared a
proclaimed offender and could not be arrested so far in the criminal case
which was registered against him. Simply, because the driver had
absconded, it could not be inferred that the driver did not possess a valid
and effective driving licence to drive the RTV involved in the accident so
as to entitle the Appellant Insurance Company to avoid the contract of
insurance.
6. Admittedly, no notice under Order 12 Rule 8 CPC was served upon the
owner to produce the driving licence of the driver. In fact, there were
other cases filed by the other victims wherein the copy of the driving
licence was produced by the owner when he was issued a notice under
Order 12 Rule 8 CPC. Even if, I do not take cognizance of the
production of copy of the driving licence in those cases, the fact remains
that the Appellant Insurance Company failed to discharge the initial onus
to prove that there was a conscious and wilful breach of the terms and
conditions of the policy on the part of the insured. The Appellant,
therefore, cannot avoid the contract of insurance.
7. During the course of arguments, a legal question was raised by the
learned counsel for the Appellant Insurance Company. It is stated that
carrying capacity of the insured vehicle RTV No.DL-1VA-1494 as per
registration certificate (Ex.R3W1/C) placed on record was 15. It is urged
that more than 21 passengers were travelling in the insured vehicle at the
time of the accident and 21 of them suffered injuries as the RTV capsized
on account of rash and negligent driving. As many as 21 Claim Petitions
were filed in respect of this accident. It is urged that the Appellant was
liable to pay the compensation only in respect of 15 victims and the
compensation of 15 victims was to be distributed on pro rata basis by the
Court amongst all the 21 victims and rest of the compensation shall be
payable by the owner and the driver of the vehicle.
8. I tend to agree with the learned counsel for the Appellant Insurance
Company. This question was directly dealt with by the Supreme Court in
National Insurance Co. Ltd. v. Anjana Shyam & Ors., (2007) 7 SCC 445.
In the said case, the bus had carrying capacity of 42 passengers for which
it paid the premium. It was overloaded and was carrying 90 passengers.
The bus fell off the road into a nala leading to death of 26 persons
including the driver and injuring 63 other persons. The legal
representatives of the deceased and the injured approached the Motor
Accident Claims Tribunal claiming compensation under Section 166 of
the Act. A contention was raised before the Claims Tribunal that it was a
fundamental breach of the contract of Insurance and therefore, the
Insurance Company could repudiate the policy and was not liable for the
compensation that may be adjudged. The Claims Tribunal brushed aside
the objection and passed the award. The Insurance Company filed 38
Appeals before the Himachal Pradesh High Court. The High Court held
that overloading of a bus which had permit to ply on the route with only
42 passengers did not amount to violation of the route permit or any other
law for which the State Govt. could be held to be contributory negligence
and that the Insurance Company was liable to pay the amounts as
awarded by the Claims Tribunal. The Insurance Company approached
the Supreme Court where it was held that Insurance Company would be
liable to pay compensation in respect of 42 awards passed for the highest
amount which would be distributed amongst the injured/legal
representatives of the deceased equitably. In the instant case, the carrying
capacity was 15 and the vehicle was overloaded with 21 passengers.
9. My attention was drawn to an order dated 17.09.2011 passed by the
Claims Tribunal whereby five Claims Petitions being (Suit Nos.
283/2011, 284/2011, 285/2011, 286/2011 and 341/2010) were dismissed
for want of any evidence and one Petition being (Suit No.316/2010) was
adjourned sine die. The learned counsel for the Appellant concedes that
only fifteen Appeals have been filed.
10. Since compensation has been awarded in fifteen cases which is payable
by the Appellant; there is no question of payment of compensation on pro
rata basis.
11. MAC.APP. Nos. 672/2011, 673/2011, 674/2011 & 676/2011 are
accordingly dismissed.
MAC.APP.221/2012
12. This Cross-Appeal has been filed by Suresh and Ram Naresh, two
brothers of deceased Ramesh Chand. It is stated that the first Appellant
was the younger brother of the deceased and was residing with the
deceased in Delhi, whereas the second Appellant was elder brother of the
deceased. Admittedly, both the Appellants were gainfully employed.
The Claims Tribunal took 1/6th of the deceased's income as his saving
and applied the multiplier as per his age, that is, 13 and awarded a sum of
`1,37,228/- towards loss to estate in favour of the Cross-Objectionists.
13. It is urged by the learned counsel for the Appellants that deceased
Ramesh Chand was aged 48 years and was unmarried. Thus, the Claims
Tribunal ought to have deducted only 1/3rd of the deceased's income
towards his personal and living expenses and awarded 2/3rd of his income
towards loss to estate.
14. I would not agree. Although, it was claimed that the deceased was
operating from the footpath in Radio Market, Chandni Chowk, Delhi and
was earning `10,000/- per month, in the absence of any evidence with
regard to deceased's Ramesh Chand income, the Claims Tribunal
awarded the compensation on the basis of minimum wages of an
unskilled worker. Since deceased Ramesh Chand was held to be earning
only minimum wages, he could not be expected to save much from the
small sum of `5,278/- per month. In the circumstances, the award of a
sum of `1,37,228/- is justified and is in consonance with the judgment of
Division Bench of Karnataka High Court in A.Manavalagan v.
A.Krishnamurthy & Ors., 2005 ACJ 992 and this Court in Keith Rowe v.
Prashant Sagar & Ors., 2011 ACJ 1734.
15. The Cross Appeal (MAC.APP.221/2012) is devoid of any merit; the same
is accordingly dismissed.
16. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company in each of the cases.
17. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 12, 2012
pst
